Dedicated to the conservation and restoration of nature, The Larch Company is a non-membership for-profit organization that represents species that cannot talk and humans not yet born. A deciduous conifer, the western larch has a contrary nature.

Don’t tell anyone, but the more the Bundys—especially the patriarch, Cliven—talk, the better off are America’s public lands. This is true even if Cliven doesn’t again go off-script and full-on racist...

Fresh on the heels of the dismissal of federal charges, Cliven Bundy has filed a new lawsuit against the federal government. The suit was filed on January 25, 2018, in the eighth judicial district in and for Clark County, Nevada.

The bands of bozos that joined Cliven Bundy and his four sons in legally questionable escapades on federal public lands have mostly gotten away with it.... And now the conservation community has a chance to make sweet, sweet lemonade out of the Bundy lemons.

Who wouldn’t want “resilient” (“able to withstand or recover quickly from difficult conditions”) forests? With the name Resilient Federal Forests Act of 2017 (H.R.2936, 115th Congress), what could possibly be wrong with this bill?

Everything. Judge neither a book by its cover nor a bill by its name.

Introduced by Representative Bruce Westerman (R-4th-AR), the bill is the timber industry’s wet dream legislation. In only his second term in Congress, Westerman has received more campaign contributions from Big Timber than any other industry.

The Westerman bill would legislate horrifically harmful public forest policy into law.

President Trump signed an executive order on April 26, 2017, that directs Secretary of the Interior Ryan Zinke to review sixty-two of the last three presidents’ national monument proclamations, dating back to 1996. The review will result in a final report in four months that “shall include recommendations, Presidential actions, legislative proposals, or other actions consistent with law.”

The administration is interested in either totally abolishing, reducing in size, and/or weakening the protections for national monuments. Those prerogatives belong to Congress. If Trump tries, he’ll get a multitude of tweets saying, “See you in court!”

The 2016 election of Donald Trump in the Electoral College was a troubling development on many fronts, including that of conserving certain federal public lands as national monuments for this and future generations. The Trump administration is considering entreaties from some aggrieved Republican U.S. senators and members of Congress—as well as some shortsighted local economic interests—to either abolish, reduce, or weaken national monuments proclaimed by previous presidents. They are concentrating on those national monument proclamations by all presidents whose last names start with the letter O.

Proclamations: Exercising Congressionally Delegated Authority

President Obama’s use of the congressionally delegated authority to proclaim national monuments was both vast and visionary. Since President Theodore Roosevelt signed the Antiquities Act of 1906, all U.S. presidents except for Republicans Nixon, G.H.W. Bush, and Reagan have utilized the authority by proclaiming national monuments. Some presidents have proclaimed a lot, some just a few, and some none at all.

The Antiquities Act is as eloquent and visionary as it is brief. Here are the two most important provisions:

(a) Presidential Declaration.—

The President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.

(b) Reservation of Land.—

The President may reserve parcels of land as a part of the national monuments. The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.

It is important to note that when a president proclaims a national monument, the president is not exercising constitutional authority as president but rather exercising a constitutional authority granted to Congress in the “property clause” (Article IV, Sec. 3, Clause 2) that Congress has delegated to the president. Congressional power over federal public lands is a matter of very settled law, but that doesn’t mean a few whackos don’t reject it.

National monuments are “proclamations,” not “executive orders.” The president issues executive orders under the faithful execution clause of the Constitution (in Article II, Section 3). A president may expand, revoke, or modify a previous executive order. An executive order and a presidential proclamation under the Antiquities Act are absolutely not one and the same.

Mistaken Ideas About Undoing Proclamations

National monument opponents believe a president can undo a national monument proclamation of a predecessor. They are wrong. Let’s examine three potential (il)legal lines of attack: abolition, reduction, and weakening.

Abolition

The command of the Antiquities Act’s paragraph (a) is clear: the president may declare national monuments. There is no authority to un-declare them. If Congress had meant for a later president to overrule a previous president, it would has said so. Congress did not.

No president has ever abolished a prior president’s national monument. Congress has, but Congress can.

Reduction

Paragraph (b) requires that a national monument be the “smallest area compatible with the proper care and management of the objects to be protected.” Another gambit—which national monument opponents believe may have a better chance of withstanding judicial scrutiny—is for a later president to officially proclaim that a previous president got it wrong in the original proclamation and secured too much area as a national monument. Another argument might be that factual circumstances have changed, so a smaller area will still protect the objects proclaimed for protection.

Some presidents have by subsequent proclamation reduced the area within a national monument. In some cases, the reduction was accompanied by an expansion elsewhere. While this is precedent in practice, it is not precedent in court—because no court has ever been asked to rule on the matter.

Again, if Congress had meant for a later president to overrule a previous president, it would have said so. Congress did not.

Weakening

The final gambit may be gutting the protections afforded in the national monument proclamation. Modern national monument proclamations have tended to be very specific and directive as to how the administering agency is to manage the monument (what is allowed and not allowed, and that kind of thing). Some presidents have, by subsequent proclamation, changed management requirements.

While this is precedent in practice, it is not precedent in law—because no court has ever been asked. Again, if Congress had meant for a later president to overrule a previous president, it would have said so. Congress did not.

If President Trump tries to abolish, reduce, or weaken a national monument proclaimed by a predecessor, he will be challenged in federal court and we shall all see if the Antiquities Act means what it says.

For those who want to go deeper on national monuments and law and the power of a subsequent president to cause mischief, I commend to you:

Two lawsuits have been filed to overturn the 47,624-acre expansion of the Cascade-Siskiyou National Monument (CSNM) in Oregon by President Obama in 2016. The original CSNM was proclaimed by President Clinton in 2000 (~52,000 acres since enlarged by 13,359 acres due to the acquisition of generally undeveloped inholdings from willing sellers). The first case was filed in the U.S. District Court for the District of Columbia by the Association of Oregon and California Counties (“Addicted Counties”), while the second case was filed in the United States District Court for Oregon (Medford) by a couple of timber companies (“Big Timber”).

Addicted Counties believe that their share of timber receipts from the sale of federal timber within the monument expansion to Big Timber will decline. Both Addicted Counties and Big Timber allege that the Antiquities Act of 1906 is trumped (no pun intended; it used to be such a fine word) by the Oregon and California Lands Act of 1937. The latter statute generally prescribes the management of more than two million acres of federal forestland in western Oregon. Big Timber and Addicted Counties believe the O&C Act is a timber uber alles statute, though they’ve yet to find a federal court judge who agrees with them. This is Big Timber’s and Addicted Counties’ latest of several (so far unsuccessful) attempts to have a court declare that the O&C Act of 1937 is indeed a combination of the 11th Commandment and the 28th Amendment. The O&C Act is, in fact, Congress’s first attempt to write a multiple use statute, and along with statutes enacted before and after 1937 (such as the Endangered Species Act and the Clean Water Act) guide the management of the O&C lands. Both Earthjustice and the Western Environmental Law Center have intervened in the two cases on behalf of several conservation organizations (woe unto Big Timber and Addicted Counties).

To get down and dirty on this obscure statute that applies only to certain federal public lands in western Oregon, I commend to you:

The Snake River in Hells Canyon would be dammed today if not for former Senator Bob Packwood (R-OR). The French Pete watershed would not have been returned to its rightful place in the Three Sisters Wilderness if not for Packwood.

No, Packwood is not dead yet, but he is in his ninth decade (and with all his marbles, the last time I saw him). I am implementing a new policy to remember some Oregon public lands conservation greats before they, in words from Hamlet’s "To be, or not to be" soliloquy, “have shuffled off this mortal coil mortal coil.” It is an interesting exercise and a challenge to write a remembrance of someone not yet passed. I’ll call it a premembrance.

The American system of justice may be the best in the world, but it’s not perfect. In the matter of seven defendants who—by force of arms—illegally occupied and caused damage to the Malheur National Wildlife Refuge in southeastern Oregon, justice was not served.

A ~1,000-word weekly exposition on some aspect of federal or state public lands in the United States. Some blog posts goes rather deep and serve as a useful (I hope) backgrounders on particular public land areas, matters or issues. Other weeks, you’ll find a topical piece addressing a public lands controversy of the moment. This blog not only defends, but also extols, public lands.

Andy Kerr of The Larch Company (www.andykerr.net) splits his time between Ashland, OR and Washington, DC. He has been significantly involved in the enactment of more than 25 pieces of federal and state legislation and in copious litigation pertaining to public lands. Dedicated to the conservation and restoration of nature, The Larch Company is a non-membership for-profit organization that represents species that cannot talk and humans not yet born. A deciduous conifer, the western larch has a contrary nature.